Jamila Khatoon and Ors. vs Addl. District Judge,Saharanpur & Ors.

S.P. Mehrotra, J.—The petitioners have filed this writ petition under Article 226 of the Constitution of India, inter alia praying for issuance of a writ, order or direction in the nature of certiorari quashing the judgment and order dated 881988 (Annexure No. 9 to the writ petition) passed by the respondent No. 1 and the judgment and order dated 761986 (Annexure No. 8 to the writ petition) passed by the respondent No. 2.

The dispute relates to a shop No. 6/906/1 situated in Mohalla Khumran Saharanpur. The said shop has hereinafter been referred to as �the disputed shop�.

It appears that the respondent No. 3 filed a release application under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 against the petitioners for the release of the disputed shop. The said release application was registered as PA Case No. 113 of 1984.

It was, inter alia alleged in the said release application that the house No. 6/906 situated in Mohalla Khumran, Saharanpur and certain other properties were the joint family property, and that as a result of settlement amongst the members of the family, the said house No. 6/906 fell in the share (�Kura�) of the respondent No. 3, and that the disputed shop was a part of the said house No. 6/906, and that Late Noor Ahmad, ancestor of the petitioners was a tenant in the disputed shop since the time of Nand Kishore father of the respondent No. 3 and that the said Noor Ahmad, who was fully aware of the said family settlement accepted the respondent No. 3 as the sole landlord of the disputed shop, and began to pay rent to the respondent No. 3 in respect of the disputed shop, and that the monthly rent of the disputed shop at the time same came in the �Kura� of the respondent No. 3 was Rs. 4.97 and that after the death of the said Noor Ahmad, his heirs and legal representatives (petitioners in the present writ petition) were tenant in the disputed shop at the monthly (rent of) Rs. 4.97. It was, inter alia, further alleged in the said release application that the respondent No. 3 had four sons and two daughters in his family, and that the eldest son of the respondent No. 3, Krishna Gopal was married, and he had three daughters and he was employed in State Bank of India, Saharanpur and that the second son of the respondent No. 3, Arun Kumar was also married and he had two daughters, and he was employed in Union Bank of India, Kanhiya Lal Market Branch, Saharanpur. It was, inter alia, further alleged in the said release application that the third son of the respondent No. 3, Anil Kumar had passed Chartered Accountancy Examination in the year 1984, and the said Anil Kumar had also obtained licence for practising the said profession from the concerned department in November, 1984. It was, inter alia further alleged in the said release application that the youngest son of the respondent No. 3, Sunil Kumar was employed in State Bank of India, Railway Road Branch, Saharanpur and that the daughters of the respondent No. 3 had already been married, and that unfortunately one daughter of the respondent No. 3 Nisha Devi had expired leaving behind three children.

It was, inter alia further alleged in the said release application that the said Anil Kumar, who had passed Chartered Accountancy Examination and had also obtained licence for practice, wanted to start his own profession of Chartered Accountancy, for which the respondent No. 3 had no other property in his possession where the said Anil Kumar could start his profession of Chartered Accountancy and that the disputed shop was fully suitable for the said purpose, and that considering the dimensions of the disputed shop also, the same was fully suitable for the said purpose and that the disputed shop was required by the respondent No. 3 for establishing the said Anil Kumar could establish his office etc. in the disputed shop for carrying on the practice as Chartered Accountant, and that the said Anil Kumar was fully competent to carry on the said profession of Chartered Accountancy, and that the respondent No. 3 had means to meet the expenditure involved in establishing office etc. and that the need of the respondent No. 3 was real bona fide and pressing.

It was, inter alia further alleged in the said release application that the petitioners had no need for the disputed shop, and that the said Noor Ahmad in his life time used to carry on ordinary business of general merchant, and that 34 months before his death, the said Noor Ahmad fell ill and the disputed shop remained closed, and that after the death of the said Noor Ahmad also, the disputed shop remained closed, and no business was being done in the disputed shop, and that from the view point of comparative hardship, none of the petitioners would have suffered any hardship, in case of ejectment from the disputed shop, while in case of rejection of the said Anil Kumar, whose entire future, was before him, and who had passed Chartered Accountancy Examination with great labour and sincerity, would remain jobless, and his entire future would be ruined. A copy of the said release application has been filed as Annexure No. 1 to the writ petition.

The petitioners contested the said release application, and written statement was filed on their behalf. A copy of the said written statement has been filed as Annexure No. 2 to the writ petition.

It was, inter alia in the said written statement filed on behalf of the petitioners that the need of the respondent No. 3 as stated in the said release application was not at all genuine or bona fide and that the house of the respondent No. 3 consisted of at least 12 rooms besides other appurtenants such as Barsati etc. and that out of the said 12 rooms, two rooms were situated on the disputed shop and on the shop under the tenancy of Mahesh, and that the said two rooms had got opening through a staircase on the main road, and that the said two rooms were totally vacant and could be used for the purpose of office in case, the need of the son of the respondent No. 3 for starting the profession was genuine and bona fide, and that besides this profession of Chartered Accountancy could easily be done in the Baithaka which was vacant and was in the lane at a distance of few paces from the main road.

It was, inter alia, further alleged in the said written statement that the said Noor Ahmad was a tenant in the disputed shop for the last 40 years and he was doing the business of general merchant in the disputed shop and that the business of the said Noor Ahmad was running in prosperous condition and he had earned good will, and that after the death of the said Noor Ahmad, his business was being carried on by his third son Mohd. Naseem, and that the said Mohd. Naseem had no other source of income, and the entire family consisting of his mother, his brother Mohd. Nasir and one sister Km. Sanjida were all dependent upon him, and in case, the petitioners were evicted from the disputed shop, the petitioners would suffer irreparable loss.

It further appears that in reply to certain amendments made in the said release application, additional written statement was filed on behalf of the petitioners, a copy whereof has been filed as Annexure No. 2A to the writ petition. It was, inter alia, alleged in the said additional written statement that the need of the respondent No. 3 had come to an end in view of the fact that his son, namely, Anil Kumar had shifted to Kanpur and started a Chartered Accountancy firm in partnership with some other persons at Kanpur, and that the petitioner No. 3 Mohd. Naseem was doing the business of general merchant and hosiery goods, and he had no other property except the disputed shop in which he could establish his business.

Both the sides, inter alia filed affidavits in support of their respective cases.

In the affidavit sworn by Bharat Bhushan (respondent No. 3) (Annexure No. 3 to the writ petition), it was, inter alia stated in paragraph No. 24 of the said affidavit that in fact, as the possession of the disputed shop had not been obtained as yet by the respondent No. 3, the said Anil Kumar (son of the respondent No. 3) joined the profession in partnership at Kanpur on 3031985, but left the partnership on 2081985 and the said son of the respondent No. 3 was totally jobless, and that as the respondent No. 3 would get the possession of the disputed shop, he would establish his said son in the profession of Chartered Accountancy. It was inter alia, further stated in paragraph No. 25 of the said affidavit that it was wrong to allege that the petitioner No. 3 was doing the business of general merchant and hosiery in the disputed shop. It was, inter alia further stated in paragraph No. 26 of the said affidavit that the said Anil Kumar, son of the respondent No. 3 had got a firm registered in the name of M/s. Anil Maheshwari and Associates for carrying on the profession of Chartered Accountancy at Saharanpur, and that as soon as the disputed shop would be released in favour of the respondent No. 3, the respondent No. 3 would establish his said son Anil Kumar in the profession of Chartered Accountancy.

It was, inter alia further stated in paragraph No. 9 of the said affidavit of Bharat Bhushan (respondent No. 3) (Annexure No. 3 to the writ petition) that the disputed shop measured about 21 1/2 feet in length and about 11 feet in width, and that keeping in view the said measurements of the disputed shop also, the same was suitable for carrying on the profession of Chartered Accountancy by the said Anil Kumar. It was, inter alia further stated in paragraph No. 11 of the said affidavit that it was not correct to allege that only one office was required for carrying on the profession of Chartered Accountancy, which could be established in any room. It was, inter alia, further stated in paragraph No. 11 of the said affidavit that for carrying on the profession of Chartered Accountancy, large space was required on the ground floor itself, and that a chamber would be required where the said Anil Kumar would sit, while a separate office would be required to be established where typist, clerk and clients would sit, and that the said two offices would be required to be established fully adjacent and that the respondent No. 3 had no other property except the disputed shop where the said profession could be carried on. It was, inter alia further stated in paragraph No. 12 of the said affidavit that the two rooms above the disputed shop and the shop in occupation of Mohd. Israel, had a door in between and were inter connected and were used as a common drawing roomcumdining room.

Besides the said affidavit of the said Bharat Bhushan (respondent No. 3) (Annexure No. 3 to the writ petition), various affidavits were filed by both the parties in support of their respective cases, as stated above.

The learned Prescribed Authority/Munsif Magistrate, City Saharanpur (respondent No. 2) by his judgment and order dated 761986, inter alia allowed the said release application filed by the respondent No. 3 and directed for payment of an amount equal to two years rent at the rate of Rs. 4.97 per months as compensation by the respondent No. 3 to the petitioners. It was, inter alia held by the respondent No. 2 that the said Anil Kumar, son of the respondent No. 3 had passed Chartered Accountancy Examination, and he had obtained licence for practice, and that it was the duty of every father to establish his son in any occupation, and the the marriage of the said Anil Kumar had also taken place on 16101985, and that during the pendency of the said release application, the said Anil Kumar had entered into in partnership in the Chartered Accountancy firm at Kanpur which came to an end on 2081985 and that the said Anil Kumar had taken up employment in the Hindustan Times Group, Delhi till the release of the disputed shop. It was, inter alia held by the respondent No. 2 that the said Anil Kumar was not in any Government Service, but was in the private service, and that the need of the respondent No. 3 for the disputed shop, for establishing office etc. for the Chartered Accountancy profession of the said Anil Kumar was real, bona fide and genuine.

It was, inter alia further held by the respondent No. 2 that the Chartered Accountancy profession could not be carried on in the Baithaka, and that for carrying on the said profession, besides an office where the Chartered Accountancy himself would sit, a separate office was also required, and that the disputed shop was two Khani, in one of which, the office of the said Anil Kumar could be established and in the other, the place where his clerk and clients would sit, could be established, and that the disputed shop was fully suitable for the profession of the said Anil Kumar, and that the need of the respondent No. 3 for the disputed shop for establishing his said son Anil Kumar in Chartered Accountancy profession was pressing, real and bona fide.

As regards the comparative hardships the respondent No. 2, inter alia held that no such evidence was led by the petitioners which could prove that Mohd. Naseem (petitioner No. 3) was carrying on general merchant business in the disputed shop, while on the other hand, probability was that no business was being done in the disputed shop, and, in case, the release application filed was rejected, the respondent No. 3 would suffer greater hardship than suffered by the petitioners.

Against the said judgment and order dated 761986 passed by the respondent No. 2 the petitioners filed an appeal under Section 22 of the U.P. Act No. XIII of 1972 (in short, also referred to as �the Act�) which was registered as Rent Control Appeal No. 173 of 1986.

By the judgment and order dated 881988, the learned Addl. District and Sessions Judge (Appellate Authority), Saharanpur (respondent No. 1) dismissed the said appeal filed by the petitioner and affirmed the said judgment and order dated 761986 passed by the respondent No. 2.

It was, inter alia held by the respondent No. 1 that the release application had been filed on the basis of the need of the said Anil Kumar, son of the respondent No. 3, and that the said Anil Kumar had completed the education of Chartered Accountancy at the time of filing of the said release application, and that the education of Chartered Accountancy was covered within the category of �technical education'''' and that the said Anil Kumar was not employed in any Government Service and that the said Anil Kumar wanted to start his own Chartered Accountancy profession, and that in the circumstances, the provisions of Rule 16 (2) (d) of the Rules framed under the Act were applicable to the present case, and that there are two shops (namely, the disputed shop and its adjacent shop) in the house in question, namely, house No. 6/906, and that the said two shops had been let out on rent and that besides the said two shops, rest of the accommodation on the ground floor as well as the upper floor of the house in question was residential, and that the three sons of the respondent No. 3 were in service and were married and had children etc. and the availability of 12 rooms in the house in question with the respondent No. 3 could not be said to be in excess and that considering the number of family members, the accommodation available to the respondent No. 3 was reasonable and that the respondent No. 3 had got no alternative accommodation except the disputed shop where his son, the said Anil Kumar, could start his Chartered Accountancy practice, and that the document on record (paper No. 24/1) shows that there were four shops, namely, 6/912, 6/912/1, 6/912/2, 6/912/3 in the Mohallah Khumran, Saharanpur in the name of the said Noor Ahmad and that if, in fact, the petitioners were doing any business in the disputed shop, the same could also be carried on by them in their own shops situated in Mohallah Khumran, Saharanpur and that none of the petitioners sat in the disputed shop, and that, even if, it be assumed for the sake of argument that some person was doing Hosiery business in the disputed shop on behalf of the petitioners, the petitioners could have filed the labour register, the stock register, the documentary evidence regarding sale and purchase, as also regarding registration to show that the business of Hosiery was being done on behalf of the petitioners in the disputed shop, but the petitioners did not file any such evidence and that the said documents having not been filed by the petitioners and the categorical statement having been made on behalf of the respondent No. 3 that none of the petitioners was doing any business in the disputed shop and the disputed shop was lying vacant since 34 months before the death of the said Noor Ahmad, the said statement appeared to be reasonable, and that for starting his Chartered Accountancy profession, the said Anil Kumar would need place for office and his own sitting etc. and that the said need could be satisfied only by release of the disputed shop; and that the learned Prescribed Authority on consideration of the entire facts had concluded that the need of the respondent No. 3 was bona fide and pressing, and that there was no justified reason to interfere with the said conclusion of the learned Prescribed Authority, and that the petitioners were not doing any business in the disputed shop, and that in case of release of the disputed shop, the petitioners would not suffer any loss, while in case, the disputed shop was not released, the said Anil Kumar who wanted to start his profession in the disputed shop would suffer greater hardship, and that the learned Prescribed Authority had held that the respondent No. 3 would suffer greater hardship, and that there was no justified reason to interfere with the said conclusion arrived at by the learned Prescribed Authority.

Thereafter, the petitioners filed the present writ petition.

Counteraffidavit has been filed on behalf of the respondent No. 3, while the petitioners have filed rejoinder affidavit.

I have heard Sri S.S. Nigam, learned Counsel for the petitioners.

Learned Counsel for the petitioners submits that 18 years have passed since the release application was filed, and that the said Anil Kumar son of the respondent No. 3 was in service of Hindustan Times Group, Delhi, and as such, whatever need was there for the release of the disputed shop, the same has come to an end.

I have considered the submission made by the learned Counsel for the petitioners, and I am unable to accept the same. The learned Prescribed Authority in its judgment and order dated 761986 considered the said aspects, and noticed the assertions made in the rejoinder affidavit filed by the respondent No. 3 in the said release application wherein the respondent No. 3, inter alia stated that the said Anil Kumar, son of the respondent No. 3 had joined the service in Hindustan Times Group, Delhi for the time being, and the said Anil Kumar would leave the said service as soon as the disputed shop was released in favour of the respondent No. 3. The learned Prescribed Authority believed the assertions made in the said rejoinder affidavit filed by the respondent No. 3 and recorded findings of facts regarding the bona fide need of the respondent No. 3 for settling his son in the Chartered Accountancy profession in the disputed shop. The findings of fact recorded by the Prescribed Authority were confirmed by the respondent No. 1 in its judgment and order dated 881988. The said findings are findings of fact recorded on detailed consideration of the evidence on record. No interference is called for with the said findings in exercise of writ jurisdiction under Article 226 of the Constitution of India.

It is to be noted that the said Anil Kumar, son of the respondent No. 3 could not sit idle awaiting release of the disputed shop for starting the Chartered Accountancy profession. It was natural for the said Anil Kumar to engage himself in some alternative job etc. to keep himself busy and earn his livelihood while awaiting release of the disputed shop. Therefore, even if the said Anil Kumar had joined the partnership firm of Chartered Accountancy at Kanpur for some time or had joined service in the Hindustan Times Group, Delhi his need for starting his Chartered Accountancy profession did not come to an end.

In Gaya Prasad v. Pradeep Srivastava, 2001(1) JCLR 907 (SC) : 2001 (1) ARC 352 (SC), their lordships of the Supreme Court laid down as follows (Paragraph No. 10 of the said ARC).

�10. We have no doubt that the crucial date for deciding as to the bona fide of the requirement of the landlord is the date of his application for eviction. The antecedent days may perhaps have utility for him to reach the said crucial date of consideration. If every subsequent development during the past petition period is to be taken into account for judging the bona fides of the requirement pleaded by the landlord there would perhaps be no end so long as the unfortunate situation in our litigative slow process system subsists. During 23 years after the landlord moved for eviction on the ground that his son needed the building, neither the landlord or his son is expected to remain idle without doing any work, lest joining any new assignment or starting any new work would be at the peril of forfeiting his requirement to occupy the building. It is a stark reality that the longer is the life of the litigation the more could be the number of development sprouting up during the long interregnum. If a young entrepreneur decides to launch a new enterprise and on that ground he or his father seeks eviction of a tenant from the building, the proposed enterprise would not get faded out by subsequent development during the traditional lengthy longevity of the litigation. His need may get dusted, patina might stick on its surface, nonetheless the need would remain intact. All that is needed it to eras the patina and see the gloss. It is pernicious, and we may say, unjust to shut the door before an appellant just on the eve of his reaching the finale, after passing through all the previous levels of the litigation merely on the ground that certain development occurred pendente lite because the opposite party succeeded in prolonging the matter for such unduly long period.�

In view of this decision of the apex Court, the first submission made by the learned Counsel for the petitioner is not correct.

Learned Counsel for the petitioners has next contended that the authorities below were bound to consider the question as to whether the release of part of the disputed shop would suffice the need of the respondent No. 3 in view of the provisions of Rule 16 (1) (d) of the Rules framed under the Act. Learned Counsel for the petitioners has submitted that even though Rule 16 (1) (d) of the Rules framed under the Act was in regard to residential building, the question of release of part of the accommodation must be considered in case of nonresidential building also. Learned Counsel for the petitioners places reliance on the following decisions:

(i) Smt. Raj Mani Mehrotra v. IInd Addl. District Judge and others, 1980 (U.P.) 2 RCC 86 (SC)

(ii) M/s. Ram Nath Export Private Limited, Agra v. The Addl. District Judge, Agra and others, 1984 (1) ARC 397.

(iii) Alok Brothers (Tea) Pvt. Limited, Kanpur v. VIIIth Addl. District Judge, Kanpur Nagar and others, 1989 (2) ARC 99.

(iv) Dal Chand and others v. VII Addl. District Judge, Agra and others, 1992 (1) ARC 237.

I have considered the submissions made by the learned Counsel for the petitioners.

In order to appreciate the submissions made by the learned Counsel for the petitioners, it is necessary to refer to the relevant provisions of the Act and the Rules framed thereunder.

Section 21 (1) of the Act lays down as under:

�21. Proceedings for release of building under occupation of tenant. (1) The prescribed authority may, on an application of the landlord in that behalf, order the eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied that any of the following grounds exists, namely:

(a) that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any members of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling or where the landlord in the trustee of a public chartiable trust, for the objects of the trust.

(b) that the building is in a dilapidated condition and is required for purposes of demolition and new construction; :

Provided that where the building was in the occupation of a tenant since before its purchase by the landlord, such purchase being made after the commencement of this Act, no application shall be entertained on the grounds, mentioned in clause (a), unless a period of three years had elapsed since the date of such purchase and the landlord has given a notice in that behalf to the tenant not less than six months before such application, and such notice may be given even before the expiration of the aforesaid period of three years.

Provided further that if any application under clause (a) is made in respect of (any building let out exclusively for nonresidential purposes), the prescribed authority while making the case, award against the landlord to the tenant (an amount not exceeding two years'' rent) as compensation and may, subject to rules, impose such other conditions as it thinks fit.

Provided also that no application under clause (a) shall be entertained:

(i) for the purposes of a chartiable trust, the objects of which provide for discrimination in respect of its beneficiaries on the ground of religion, caste, or place of birth.

(ii) in the case of any residential building, for occupation for business purposes:

(iii) in the case of any residential building, against any tenant who is a member of the armed forces of the Union and in whose favour the prescribed authority under the Indian Soldiers (Litigation) Act, 1925 (Act No. IV of 1925) has issued a certificate that he is serving under special conditions within the meaning of Section 3 of that Act, or where he has died by enemy action while so serving, them against his heirs; :

Provided also that the prescribed authority shall, except in cases provided for in the Explanation, take into account the likely hardship to the tenant from the grant of the application as against the likely hardship to the landlord from the refusal of the application and for that purpose shall have regard to such factors as may be prescribed.

Explanation. In the case of a residential building;

(i) where the tenant or any members of his family (who has been normally residing with or is wholly dependent on him) has built or has otherwise acquired in a vacant state or has got vacated after acquisition a residential building in the same city, municipality, notified area or town area, no objection by the tenant against an application under this subsection shall be entertained.

[Note. For the purposes of this clause a person shall be deemed to have otherwise acquired a building, if he is occupying a public building for residential purposes as a tenant, allotee or licensee]

(ii) [* * * *]

[(iii) where the landlord of any building is:

(1) a serving or retired Indian Soldier as defined in the Indian Soldiers (Litigation) Act, 1925 (IV of 1925), and such building was let out at any time before his retirement, or

(2) a widow of such a soldier and such building was let out at any time before the requirement or death of her husband, whichever occurred earlier.

and such landlord needs such building for occupation by himself or the members of his family for residential purposes, then his representation that he needs the building for residential purposes for himself or the members of his family shall be deemed sufficient for the purpose of clause (a), and where such landlord owns more than one building this provision shall apply in respect of one building only.]

(iv) [* * * *] .........�

Thus, on release application being filed by the landlord under Section 2 (1), the Prescribed Authority may order the eviction of the tenant from the building under tenancy or any specified part thereof. Whether the building in question is residential or nonresidential, it is open to the Prescribed Authority to release the entire building or any specified part thereof.

Rule 16 of the Rules framed under the Act provides as follows:

�16. Application for release on the ground of personal requirement [Sections 21 (1) (a) and 34 (8)] (1) In considering the requirements of personal occupation for purposes of residence by the landlord or any member of his family the prescribed authority shall also have regard to such factors as the following :

(a) where the landlord already has adequate and reasonably suitable accommodation having regard to the number of members of his family and their respective ages and his means and social status, his claim for additional requirements shall be construed strictly;

(b) where a residential building was let out at a time when the sons of the landlord were minors and subsequent one or more of them has married, the additional requirement of accommodation for the landlord''s sons shall be given due consideration;

(c) where the tenant has apart from the building under tenancy other adequate accommodation whether owned by him or held as tenant of any public premises, having regard to the number of members of his family and their respective ages and his social status, the landlords claim for additional requirements shall be construed liberally ;

(d) where the tenant''s needs would be adequately met by leaving with him a part of the building under tenancy and the landlord''s needs would be served by releasing the other part, the prescribed authority shall release only the latter part of the building.

(e) where there are a number of tenants separately occupying a block of tenements and the landlord desires their eviction on ground of his personal need the prescribed authority shall consider whether suitable alternative accommodation is likely to be available to such tenants.

(f) where the landlord offers to the tenant alternative accommodation reasonably suitable to the needs of the tenant and his family the landlord''s claim for release of the building under tenancy shall be construed liberally.

(g) where the landlord was engaged in any employment in the same city, municipality, notified area or town area in which the building is situate and was in occupation of other accommodation by reason of such employment or where the landlord is the wife or minor son or unmarried daughter of a person who was engaged in any profession, trade, calling or employment away from the city, municipality, notified area or town area within which the building is situate and was living with such person, and by reason of the cessation of such engagement, the landlord needs the building for occupation by himself for residential purposes, such need shall ordinarily be deemed sufficient.

(2) While considering an application for release under clause (a) of subsection (1) of Section 21 in respect of a building let out for purposes of any business, the prescribed authority shall also have regard to such facts as the following:

(a) the greater the period since when the tenant opposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application.

(b) where the tenant has available with him suitable accommodation to which he can shift his business without substantial loss there shall be greater justification for allowing the application.

(c) the greater the existing business of the landlord''s own, apart from the business proposed to be set up in the leased premises, the less the justification for allowing the application, and even if an application is allowed in such a case, the prescribed authority may on the application of the tenant impose the condition where the landlord has available with him other accommodation (whether subject to the Act or not) which is not suitable for his own proposed business but may serve the purpose of the tenant that the landlord shall let out that accommodation to the tenant on a fair rent to be fixed by the prescribed authority.

(d) where a son or unmarried or widowed or divorced or judicially separated daughter or a daughter of a male lineal descendant of the landlord has after the building was originally let out, completed his or her technical education and is not employed in Government Service and wants to engage in self employment his or her need shall be given due consideration.

(3) Where the tenant being servant of Government or of any local authority or any public sector corporation does not contest the application, then a reasonable opportunity of being heard shall be given to the District Magistrate, who shall have the right to oppose the application.]

Thus, Rule 16 (1) and (2) provide for the factors which shall also be considered by the Prescribed Authority while deciding the release application under Section 21 (1) (a) of the Act. Rule 16 (1) deals with residential building, while Rule 16 (2) deals with nonresidential building.

A perusal of Rule 16 (1) (d) of the Rules framed under the Act shows that the said rule makes provision for release of a part of the building under tenancy. The said Rule 16 (1) (d) is applicable in respect of residential building. Rule 16 (2) which applies to nonresidential building does not contain any similar provision.

However, even though Rule 16 (1) (d) of the Rules framed under the Act as such, is not applicable to the nonresidential building, still in view of the provisions contained in Section 21 (1) of the Act. It is open to the Prescribed Authority to release either the entire building under tenancy or any specified part thereof. Hence, the absence of any provision equivalent to Rule 16 (1) (d) of the Rules in subrule (2) of Rule 16 of the Rules does not debar the Prescribed Authority from considering the question as to whether release of part of the tenanted building would meet bona fide need of the landlord.

In Smt. Rajmani Mehrotra case (supra), their lordships of the apex Court laid down as follows (paragraph No. 1 of the said UPRCC):

�1. We have heard Counsel for the parties. On going through the judgments of the lower authorities as also of the High Court we are satisfied that the issue arising under Rule 16 (1) (d) of the rules framed under the U.P. Urban Buildings (Regulations of Letting, Rent and Eviction) Rules, 1972 as to whether the landlord''s need could have been satisfied by releasing only a part of the premises has not been gone into or considered by any of them. When the plea under the said rule was pressed on behalf of the tenant in the High Court. The High Court rejected it on the sole ground that no such plea had been raised by the tenant in his written statement and as such it could not be considered. It is clear that under the relevant rule it is a duty of the Court to take into account that aspect while considering the requirements of personal occupation of the landlord and therefore, this issue will have to be remanded to the High Court.�

In M/s. Ram Nath Export Pvt. Limited case (supra), a learned Single Judge of this Court held as follows (Paragraph No. 25 of the said ARC):

�25. Rule 16 (2) applies when an application is made for release of a building which has been let out for purposes of any business. The question is whether in a case, as in the instant, the provisions of Rule 16 (1) (d) can be taken into consideration by the Prescribed Authority in respect of a building which is occupied by a tenant for business purposes ..........

� ......In this situation we have to look to the policy behind the Act. The Act has been passed to provide in the interest of the general public, for the regulation of letting and rent of, and the eviction of tenants from certain classes of buildings situated in urban areas, and for matters connected therewith. Section 20 bars a suit for eviction against a tenant except on the specified grounds. Then we come to Section 21 which deals with the application by landlord for release of a building under the occupation of a tenant. Under clause (a) release can be ordered on the ground that the building is bona fide required either in its existing form or after demolition and new construction by the landlord for occupation by himself or any member of his family or any person for whose benefit it is held by him, either for residential purposes or for purposes of any profession, trade or calling or where the landlord is the trustee of a public charitable Trust. Clause (b) provides for release of the building in dilapidated condition which is required by the landlord for demolition and new construction. In this background that Rule 16 has been framed. Rule 16 (2) (c) and (d) are intended to govern cases where the release is sought by the landlord for business purposes and selfemployment of specified relation of the landlord. Rule 16 (2) (a) and (b) lay down certain criteria which can be applied both in cases where the release is sought for personal occupation or for business purposes. Coming to Rule 16 (1) there is nothing to indicate in the rule that its operation is excluded when a building occupied by a tenant for business purposes required by the landlord for personal occupation or residence. Rule 16 (1) and (2) must be read together and not as operating in exclusive of fields.......�

� ........If the two rules are read together as applying to a case where a building is required by the landlord for his personal occupation and is being used by the tenant for business purposes the problem is resolved.�

In Alok Brothers (Tea) Private Limited case (supra), a learned Single Judge of this Court laid down as follows (paragraph No. 9 of the said ARC):

�9. Sri K.M. Dayal appearing for the landlord opposite party, however, submitted that there is no rule requiring this aspect to be considered in the case of a nonresidential building. According to him, Rule 16 (2) which deals with nonresidential buildings does not lay down such mandatory condition while such condition is there in respect of residential building under Rule 16 (1) (d). This argument, however, omits subsection (1) of Section 21 which provides that the order of eviction can be passed by the Prescribed Authority in respect of the building under tenancy or any part thereof. It essentially means that it is within the powers of the Prescribed Authority either to release the entire building or to release only a specified part thereof. Even if there is no specific, provision in this regard in the Rules, the main section does not lose its efficacy. The Rules are always servant to the main section and are intended only to carry out the intent of the main provision. The argument therefore, does not appeal to me. In the case of both residential and nonresidential building, the Prescribed Authority has to see whether the entire building or only a part thereof should be released and for this purpose a finding must be recorded that the landlord''s need will be met only by releasing the entire property and not by only a part thereto.�

In Dal Chand case (supra), a learned Single Judge of this Court held as follows (paragraph No. 9 of the said ARC):

�9. Explanation (iv) which would be applicable in the present case does not take away the power of the Prescribed Authority to consider the extent of the accommodation or any specified part of the accommodation which may be sufficient for the bona fide and genuine need of the landlord. Thus, even if the need is treated to be bona fide and genuine, the extent of the accommodation required for those needs will have to be considered by the Prescribed Authority. In this view of the matter, in the impugned order, the needs of the landlord have been found to be genuine and bona fide on both the grounds i.e. on medical ground as also on requirement of additional accommodation. But according to the learned Judge, the aforesaid needs of the landlords would be met by release of part accommodation on the ground floor i.e. by release of the outer room facing the road on the western side.�

Hence, even in case, where the release is being sought in respect of a nonresidential building, it is open to the prescribed authority to release the entire building in tenancy or any specified part thereof.

Keeping in view of the aforesaid legal position, let us examine the position in the present case. The present case relates to the disputed shop, i.e. nonresidential building. As noted above, the learned Prescribed Authority in its judgment and order dated 761986, inter alia held that for carrying on the Chartered Accountancy profession, besides an office where the Chartered Accountant himself would sit, a separate office was also require and that the disputed shop had two Khani, in one of which, the office of the said Anil Kumar could be established and in the other, the place where his clerk and clients would sit, could be established and that the disputed shop was fully suitable for the profession of the said Anil Kumar. The findings recorded by the learned Prescribed Authority were confirmed by the respondent No. 1 in its judgment and order dated 881988.

Thus, in view of the said findings of fact recorded on consideration of the evidence on record, it is evident that the entire disputed shop was required for the bona fide need of the respondent No. 3 for establishing his son Anil Kumar in the Chartered Accountancy profession. The authorities below rightly held that for carrying on the Chartered Accountancy profession, the said Anil Kumar would need an office where he would himself sit and a separate office for the place where his clerk and clients would sit. It is evident that the authorities below considered the question of extent of accommodation which was required by the respondent No. 3 for establishing his son Anil Kumar in the Chartered Accountancy profession, and recorded the findings that the entire disputed shop was required for satisfying the said need of the respondent No. 3. Thus, there was no occasion for the authorities below to release only part of the disputed shop. The said findings have been recorded by the authorities below on detailed consideration of the evidence on record, and no interference is called for with the said findings in exercise of writ jurisdiction under Article 226 of the Constitution of India.

In view of the said findings recorded by the authorities below, it is evident that the submission made by the learned Counsel for the petitioners that the authorities below should have considered the question of release of part of the disputed shop has no force, and the same cannot be accepted.

Learned Counsel for the petitioners has then contended that the authorities below acted illegally in applying the principle of Rule 16 (2) (d) of the Rules framed under the Act to the present case. This submission made by the learned Counsel for the petitioners, in my opinion, is not correct.

A perusal of Rule 16 (2) (d) shows that the following requirements should be fulfilled for applying the provisions of the said Rule:

(i) Son or unmarried or widowed or divorced or judicially separated daughter or daughter of a male lineal descendant of the landlord has, after the building was originally let out, completed his or her technical education.

(ii) The said son or daughter is not employed in Government Service.

(iii) The said son or daughter wants to engage in self employment.

If these conditions are fulfilled then the need of the said son ordaughter shall be given due consideration.

Coming to the facts of the present case, it was established on record that the said Anil Kumar, son of the respondent No. 3 completed his Chartered Accountancy course after the disputed shop had originally been let out to the said Noor Ahmad. The Chartered Accountancy course is evidently technical education.

It was further established on record that the said Anil Kumar was in the service in the Hindustan Times Group, Delhi which was evidently not a Government Service.

It was further established on record that the said Anil Kumar wanted to start his Chartered Accountancy profession.

Hence, all the requirements of Rule 16 (2) (d) of the Rule framed under the Act were fulfilled in the present case. Therefore, the authorities below rightly applied the provisions of the said Rule to the present case.

To show that the Chartered Accountancy course is �technical education� as mentioned above, let us consider the dictionary meaning of the word �technical�.

In Stroud''s Judicial Dictionary on Words and Phrases, Fifth Edition by John S. James, the meaning of the word �technical� has been given as follows:

Technical. �''Technical work'' is a phrase of substantially wider import than ''scientific words. No doubt all scientific work may be said to be ''technical'' but the converse by no means necessarily applies.� (per Jenkins J., in Battersea Borough Council v. British Iron and Steel Research Association, (1949) 1 KB 434).

In Shorter Oxford English Dictionary, Second Edition, Vol. II NZ, the meaning of the word �technical� has been given as follows:

�Technical. 1. Of a person : Skilled in or practically conversant with some particular art or subject (rare) 2. Belonging or relating to an art or arts, appropriate or peculiar to, or characteristic of, a particular art, science, profession, or occupation, also of or pertaining to the mechanical arts and applied sciences generally, as in t. education, t. school, 1727�.

In view of the aforesaid dictionary meaning of the word �technical�, it is evident that �technical education� is not necessarily �science education� or education relating to science subjects. The words �technical education� are of wider import. These words include education relating to any particular �art'', �Science�, �profession�, or �occupation�. Thus, in view of dictionary meaning, the Chartered Accountancy course, which is essential education for carrying on the profession of Chartered Accountancy is covered within the expression �technical education�.

In Bashith Narain Gaur and another v. Prescribed Authority and others, 1980 ARC 527; 1980 (UP) 2 RCC 562, a learned single Judge of this Court has while dealing with the expression �technical education� occurring in Rule 16 (2) (d) of the Rules framed under the Act, laid down as follows (Paragraph No. 10 of the said ARC):

�10. The expression �technical education'''' has not been defined in the Act. What meaning has to be assigned to the expression �technical education� would naturally depend on the context in which the term appears. Rule 16 (2) lays down the guidelines for determining the question whether in a given case the application of the landlord for the eviction of the tenant to enable the landlord to get the building for the purposes of his business ought to be allowed or not. The rule has, therefore, to be construed in that light. The term �technical education� is not a term of art. It has, therefore, to be given its ordinary, natural meaning taking its colour from the context in which it appears. Whether the son of the landlord who intends to engage himself in self employment possess �technical education� or not would depend on sort of business or self employment in which the son of the landlord wishes to engage. A person who wishes to engage in the type of selfemployment proposed to be set up by the landlord''s son in the present case, namely, of selling Radios and carrying repairs thereof need not, in my view, possess any Degree or Diploma of any Engineering Institute recognized by the Government for such engagement. The mechanics of Radio repairing work do not require any highly specialized knowledge or expertise in advanced engineering. For selfemployment in radio repair work, therefore, the certificate issued to the son of the petitioner, in my judgment, completely fulfills the requirements of the law. The Courts below have fallen into manifest error in holding otherwise. The first point urged by the petitioner, is, therefore, accepted.�

In view of this decision, it is evident that the expression �technical education� should be given its ordinary meaning, taking its colour from the context in which it appears.

The Chartered Accountant, who completes the course of Chartered Accountancy, undertakes study of, appears in examinations in, and acquires specialized knowledge in regard to accountancy, auditingcompany law and taxation etc. Thus, the Chartered Accountancy course will be covered within the meaning of the expression �technical education� occurring in Rule 16 (2) (d) of the Rules framed under the Act. Hence, the submission of the learned Counsel for the petitioners that the authorities below acted illegally in applying the provisions of Rule 16 (2) (d) of the Rules framed under the Act to the present case cannot be accepted.

Learned Counsel for the petitioners has next contended that the authorities below were bound to take into consideration the provisions of Rule 16 (2) (a) of the Rules framed under the Act, but the authorities below failed to do so. The contention of the learned Counsel for the petitioners again has no force.

Rule 16 (2) (a) of the Rules framed under the Act lays down that while considering the application for release under Section 21 (1) (a) of the U.P. Act No. XIII of 1972 in respect of a building let out for the purposes of any business, the Prescribed Authority shall also have regard to the fact that �the greater the period since when the tenantopposite party, or the original tenant whose heir the opposite party is, has been carrying on his business in that building, the less the justification for allowing the application.�

In Bishan Chand v. Vth Addl. District Judge, Bulandshahr and another, 1982 ARC 440 (SC), relied upon by the learned Counsel for the petitioners, their lordships of the apex Court laid down as follows (paragraph No. 2 of the said ARC):

�2. On hearing Counsel on either side, we are satisfied that in the circumstances of the case, the matter requires to be remanded. In the ejectment suit by the landlord the Vth Additional District Judge, Bulandshahr, who disposed of the appeal has unfortunately recorded a finding on the question of comparative hardship in a peculiar way. He held that hardship to both the landlord and the tenant would be the same. If that be the finding, in the absence of any additional circumstance indicating that preference could be shown to the landlord, the ejectment order in his favour could not be made. Apart from this, it does appear that Rule 16 (2) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 has not been considered at all by the appellate Court. Such an order has been confirmed by the High Court. We, therefore, set aside the High Court''s order and send the case back to the District Judge for disposal of the appeal in accordance with law with a direction to consider the question of comparative hardship in the light of the aforesaid Rule 16 (2). While considering this question it will be open to the appellate Court to take into consideration the facts relating to the earlier agreement the offer of the appellant before us to give back his own shop to the respondent and the equities arising in the case, opportunity is given to the parties to lead additional evidence in the form of affidavit before the appellate Court. The matter is accordingly remanded. There will be no order as to costs of the appeal.�

This decision thus, lays down that the factors mentioned in Rule 16 (2) of the Rules framed under the Act should be considered while dealing with the application for release under Section 21 (1) (a) of the Act in respect of an accommodation let out for the purpose of any business.

In Saadat Ali v. 1st Addl. District Judge, Farrukhabad and others, 1984 (2) ARC 615, relied upon by the learned Counsel for the petitioners, a learned Single Judge of this Court laid down as follows (paragraph No. 18 and 19 of the said ARC):

�18. The next question that remains for decision in the writ petition is whether the Appellate Authority was justified in holding that the findings was bona fide required by the landlord after demolition and new construction for his occupation to set up his son Ajai Kumar in business. While deciding an application under Section 21 (1) (a) of the Act the Appellate Authority was bound to keep in mind the requirements prescribed by Rule 16 (2) of the Rules framed under the Act.�

�19. Syed Saadat Ali had been a tenant for about 35 years in the shop and Rule 16 (2) (a) provides as follows:

�The greater the period since when the tenant opposite party, of the original tenant whose heir the opposite party is, has been carrying on his business in that building the less justification for allowing the application.�

This rule has not been referred to by the Appellate Authority nor does it appear to have been present in the mind of the Appellate Authority when he decided the appeal. The considerations mentioned in the rule are not referred too in the judgment.�

According to this decision, therefore, it is incumbent on the Appellate Authority to consider the factors mentioned in Rule 16 (2) of the Rules framed under the Act while dealing with the release application under Section 21 (1) (a) of the Act in respect of an accommodation let out for the purpose of any business.

In HabibulRahman v. 1st Addl. District Judge, Bijnor and others, 1986 (2) ALJ 1415, relied upon by the learned Counsel for the petitioners, a learned Single Judge of this Court laid down as follows (paragraph No. 18 of the said ALJ):

�18. As regards the comparative hardship that would be caused to the petitioner in case the application is allowed suffice it say that the conclusions drawn by respondent No. 1 are wholly erroneous and without consideration of materials facts on record. The Prescribed Authority rightly came to the conclusion that greater hardship would be caused to the petitioner in case he was evicted from the shop in question. However, respondent No. 1 came to the conclusion that merely because a tenant is paying income tax and as such would be deemed to be a man of status positioning himself to occupy any other accommodation is nothing but conjecture divorced from the relevant record showing that the petitioner can occupy any other shop in the town. It would have been more appropriate had the relevant material been examined by respondent No. 1 as regards the extent of business carried on by the petitioner, the good will that has been earned by him, the financial loss that may be caused by shifting from the shop in dispute the amount of credit in which sales of cloth were made, the likelihood of the return of such amounts are all material facts requiring consideration.�

This decision thus, lays down that the relevant material regarding the extent of business carried on by the tenant, the goodwill that has been earned by him, the financial loss that may be caused by shifting from the shop in dispute, the amount of credit in which sales were made, the likelihood of the return of such amounts should be examined by the authorities below for deciding the question of comparative hardship.

There is no doubt that while deciding the release application under Section 21 (1) (a) of the Act in respect of an accommodation let out for the purpose of any business, the Prescribed Authority while deciding the question of comparative hardship, shall also have regard to the factors mentioned in various clauses of Rule 16 (2) of the Rules framed under the Act.

Keeping in view the factors mentioned in Rule 16 (2) of the Rules framed under the Act, the learned Appellate Authority (respondent No. 1) in the present case considered the availability of an alternative accommodation to the petitioners for shifting their business, if any done in the disputed shop, which is a relevant factors mentioned in clause (b) of Rule 16 (2) of the Rules framed under the Act. Similarly, the learned Appellate Authority considered the fact of the said Anil Kumar having completed technical education of Chartered Accountancy, which is a relevant factor mentioned in Rule 16 (2) (d) of the Rules framed under the Act. As regards clause (a) of Rule 16 (2) of the Rules framed under the Act, it is noteworthy that both the authorities below have held that the petitioners failed to establish that any business was being done by them in the disputed shop. The learned Appellate Authority emphasised that the petitioners did not file relevant registers etc. to show that the business of Hosiery was being done on behalf of the petitioners in the disputed shop.

As no business was being done by the petitioners in the disputed shop there was no question of any hardship being caused in case, the release application in respect of the disputed shop was allowed. Further, in view of the said fact that no business was being carried on by the petitioners in the disputed shop, the provisions of clause (a) of the Rule 16 (2) of the Rules framed under the Act were not attracted to the present case.

Moreover, the learned Prescribed Authority awarded an amount equal to two years rent as compensation, and this was evidently done keeping in view the long occupation of the petitioners and their ancestor in the disputed shop which is contemplated in clause (a) of Rule 16 (2) of the Rules framed under the Act.

The contention of the learned Counsel for the petitioners regarding the nonconsideration of provisions of Rule 16 (2) (a) of the Rules framed under the Act cannot, therefore, be accepted.

Learned Counsel for the petitioners has then tried to assail the findings recorded by the authorities below on the questions of bona fide need and comparative hardship.

In my opinion, the authorities below, on detailed consideration of the material on record, have recorded findings of facts on the questions of bona fide need and comparative hardship. No illegality or perversity has been shown in the said findings of facts recorded by the authorities below. Therefore, no interference is called for with the findings recorded by the authorities below on the questions of bona fide need and comparative hardship.

Reference in this regard may be made to certain judicial decisions.

In M/s. India Pipe Fitting Co. v. Fakruddin M.A. Baker and another, AIR 1978 Supreme Court 45, their lordships of the Supreme Court laid down that the conclusions of facts cannot be interfered with by the High Court under Article 227 of the Constitution of India. The findings on the question of bona fide requirement of the landlord by the Courts below by the appreciating the entire evidence cannot be interfered with by the High Court under Article 227 of the Constitution of India.

In Munni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29, the apex Court held that the finding on the question of comparative hardships of the landlord was finding of fact, and the same cannot be interfered with by the High Court in the exercise of its writ jurisdiction under Article 226 of the Constitution of India.

In Ashok Kumar and others v. Sita Ram, 2001(2) JCLR 249 (SC) : 2001 (2) ARC 1 (SC), it was laid down by the apex Court as follows (paragraph No. 9 and 15 of the said ARC) :

�9. The position is too wellsettled to admit of any controversy that the finding of fact recorded by the final Court of fact should not ordinarily be interfered with by the High Court in exercise of writ jurisdiction, unless the Court is satisfied that the finding is vitiated by manifest error of law or is patently perverse. The High Court should not interfere with a finding of fact simply because it feels persuaded to take a different view on the material on record.

The question that remains to be considered is whether the High Court in exercise of writ jurisdiction was justified in setting aside the order of the Appellate Authority. The order passed by the Appellate Authority did not suffer from any serious illegality nor can it be said to have taken a view of the matter which no reasonable person was likely to take. In that view of that matter there was no justification for the High Court to interfere with the order in exercise of its writ jurisdiction. In a matter like the present case where orders passed by the Statutory Authority vested with power to act quasijudicially is challenged before the High Court, the role of the Court is supervisory and corrective. In exercise of such jurisdiction the High Court is not expected to interfere with the final order passed by the Statutory Authority unless the order suffers from manifest error and if it is allowed to stand it would amount to perpetuation of grave injustice. The Court should bear in mind that it is not acting as yet another Appellate Court in the matter. We are constrained to observe that in the present case the High Court has failed to keep the salutary principles in mind while deciding the case.�

In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is dismissed accordingly.

The interim order dated 2681988 as extended subsequently by this Court stands discharged. However, on the facts and circumstances of the case there will be no order as to costs.